The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits anyone from being prosecuted twice for substantially the same crime.

If Aaron Burr, Thomas Jefferson’s vice president, were found not guilty of discharging a firearm when he shot Alexander Hamilton, he could not be tried a second time by the federal government for discharging the firearm. However, if he was found not guilty of discharging a firearm and was later charged with Hamilton’s murder, the second prosecution would not be barred because murder is not substantially the same crime as discharging a firearm.

As with all of the first 10 Amendments to the U.S. Constitution, the Double Jeopardy Clause originally applied only to the federal government.

The Double Jeopardy Clause clearly established that the Founding Fathers viewed the prohibition of successive prosecutions as a fundamental right of individual liberty and an important safeguard against government harassment and overreach.

Double Jeopardy is not unique to American jurisprudence. According to Sir William Blackstone’s Commentaries on the Laws of England, it was a “universal maxim of the common law of England, that no man is to be brought into jeopardy more than once of the same offence.”

However, in the mid-19th century the U.S. Supreme Court carved-out an exception to the Double Jeopardy Clause, known as the “dual sovereignty doctrine.” Three decisions by the Supreme Court between 1847 and 1852 established the framework for the doctrine.

The Court asserted that each citizen owes "allegiance to two sovereigns, (the federal government and the state government) and may be liable to punishment for an infraction of the laws of either." As a result, the long standing doctrine allows a state to prosecute a defendant under state law even if the federal government has prosecuted him or her for the same conduct under federal law.

Think of it this way. Burr is charged with discharging a firearm in New Jersey by the federal government. The Feds try him and he is found not guilty. The dual sovereignty doctrine allows Burr to be tried again by the state of New Jersey for discharging the firearm.

This week the U.S. Supreme Court affirmed the 170-year-old doctrine. In 2015, Terance Gamble was pulled over by an Alabama police officer for a broken tail light. During the stop, the officer discovered both a gun and marijuana paraphernalia in Gamble’s car. Gamble, who had been convicted of second-degree felony robbery seven years earlier, was barred from owning a firearm.

Gamble was prosecuted for illegal possession of a firearm, and he served one year in state prison. Subsequently, the federal government also charged Gamble with illegal possession of a firearm for the same incident. Gamble asked the U.S. District Court to dismiss his federal indictment for violating double jeopardy.

The District Court ruled that the dual sovereignty exception to the Double Jeopardy Clause permitted a second prosecution for the same offense by a different “sovereign.” The U.S. Court of Appeals for the 11th Circuit agreed and the Supreme Court took up the case last fall.

“We have long held that a crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign,” wrote Justice Samuel Alito Jr. for the 7-2 majority. “We see no reason to abandon the sovereign-specific reading of the phrase ‘same offence,’ from which the dual sovereignty rule immediately follows.”

In a surprise pairing, Justices Ruth Bader Ginsburg and Neil Gorsuch wrote separately in dissent.

In splitting from his conservative colleagues Gorsuch wrote, “A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the court today endorses a colossal exception to this ancient rule against double jeopardy.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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